Opinion
Docket No. 26225.
Filed September 27, 2002.
Appeal from the District Court of the First Judicial District, State of Idaho, Shoshone County. Hon. Charles W. Hosack, District Judge.
Judgment of conviction for first degree murder, vacated.
Molly J. Huskey, State Appellate Public Defender; Mark J. Ackley, Deputy Appellate Public Defender, Boise, for appellant. Mark J. Ackley argued.
Hon. Alan G. Lance, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.
A jury found Billy G. Sheahan guilty of first degree murder with premeditation, I.C. § 18-4003(a), for the shooting death of Darrell L. Fernquist, a bail bondsman. Sheahan appeals from the judgment of conviction claiming several trial errors. We vacate.
I. FACTS AND PROCEDURAL HISTORY
Sheahan was arrested for misdemeanor offenses in Shoshone and Kootenai Counties. Fernquist, as co-owner of Access Bail Bonds, posted bail for Sheahan in the aggregate amount of $2800 for Sheahan's release. Sheahan thereafter failed to appear at a pretrial conference for the offenses. The district court issued two bench warrants for Sheahan's apprehension. Under the terms of Idaho's bail statutes, Fernquist was required to have Sheahan appear before the district court within ninety days after Sheahan's missed appearance or risk permanent forfeiture of the posted bail amount.
Idaho's bail forfeiture procedure is discussed in I.C. § 19-2927.
Fernquist contacted a recovery agent to try to apprehend Sheahan. Fernquist also stopped at Sheahan's residence in Pinehurst, Idaho several times searching for Sheahan and left business cards with Sheahan's neighbor. Prior to his attempts to apprehend Sheahan, Fernquist had never attempted to apprehend a bail jumper.
Approximately ten days before the bond's permanent forfeiture, Fernquist made an early morning trip to Sheahan's residence. On this visit, Sheahan shot and killed Fernquist inside the residence. After the shooting, Sheahan eventually went to a friend's house, called 911 and told the dispatcher that he had shot someone who was breaking into his house.
The details of Fernquist's death were disputed at trial. The state's theory of the case was that Sheahan knew that someone would be looking for him because he had failed to appear in court. As Sheahan saw Fernquist coming to apprehend him, Sheahan decided to kill Fernquist. A piece of pipe which was broken off from other pipe located in Sheahan's garage was found near Fernquist's body. However, it had no fingerprints. Thus, the state suggested that Sheahan placed the pipe near Fernquist to bolster his justifiable homicide claim. Additionally, the state presented evidence that in an incident about five weeks before the shooting, Sheahan had pointed a gun where an officer stood at the threshold of his residence.
Sheahan's theory of the case was that the shooting was justifiable. He stressed that Fernquist was not wearing official clothing that would identify him as an authority figure coming to apprehend Sheahan. Nor did neighbors hear Fernquist announce his presence at the residence. Also, the window in the front door had been broken from the outside. Fernquist had small slivers of glass on his body while Sheahan had none. Thus, Sheahan argued that Fernquist broke into his residence with a weapon, startled him and that he shot a single gunshot to stop what he believed to be an intruder.
II. ISSUES ON APPEAL
Sheahan raises thirteen issues on appeal. The issues of whether: (1) the district court erroneously denied Sheahan's motion to change venue; (2) the district court erroneously admitted evidence of Sheahan's prior act; (3) the district court improperly instructed the jury on reasonable doubt; and (4) the district court erroneously admitted evidence of Fernquist's peaceful nature, determine the disposition of this case. Accordingly, we will address only these issues.
III. THE MOTION FOR CHANGE OF VENUE
Sheahan argues that the district court should have granted his motion for a change of venue due to the pretrial publicity surrounding the case. A district court's decision regarding a motion for change of venue is discretionary. State v. Winn, 121 Idaho 850, 856, 828 P.2d 879, 885 (1992); State v. Needs, 99 Idaho 883, 890, 591 P.2d 130, 137 (1979); State v. Hall, 111 Idaho 827, 829, 727 P.2d 1255, 1257 (Ct.App. 1986). When a trial court's discretionary decision is reviewed on appeal, the appellate court conducts a multi-tiered inquiry to determine:
(1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the lower court reached its decision by an exercise of reason. State v. Grube, 126 Idaho 377, 381, 883 P.2d 1069, 1073 (1994); State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989).
It is Sheahan's burden to show that there was a reasonable likelihood that prejudicial news coverage prevented a fair trial in violation of the Sixth Amendment to the United States Constitution. Hall, 111 Idaho at 829, 727 P.2d at 1257. To determine whether a change in venue was warranted, we determine whether, in the totality of existing circumstances, juror exposure to pretrial publicity resulted in a trial that was not fundamentally fair. Winn, 121 Idaho at 856, 828 P.2d at 885. We consider the following factors when reviewing a district court's exercise of discretion regarding a motion for change of venue: the existence of affidavits indicating prejudice or an absence of prejudice in the community where the trial took place; the testimony of the jurors at jury selection regarding whether they had formed an opinion based upon adverse pretrial publicity; whether the defendant challenged for cause any of the jurors finally selected; the nature and content of the pretrial publicity; and the amount of time elapsed between the pretrial publicity and the trial. Id. When reviewing the nature and content of the pretrial publicity, this Court should be concerned with the accuracy of the pretrial publicity, the number of articles, and whether the articles will condition the jurors to accept a particular version of the facts at trial. Hall, 111 Idaho at 829-30, 727 P.2d at 1257-58. A prospective juror's assurance that he or she is impartial should be a consideration in reviewing the record, although such an assurance is not dispositive. Id. at 830, 727 P.2d at 1258.
In support of his motion, Sheahan produced several newspaper articles from Pinehurst and neighboring areas that discussed the case prior to trial. While several articles contained some potentially incorrect information and information which ultimately was excluded at trial, the district court found the articles to be mostly factual. It additionally determined that the five months which had passed since the pretrial publicity weakened the effect of the media coverage. See Needs, 99 Idaho at 891, 591 P.2d at 138 (five months was sufficient time between pretrial publicity and trial for effect of media coverage to dissipate). The district court determined that any tainting of the jury pool could be addressed and resolved through jury selection. Moreover, the district court also noted that Sheahan could renew his motion for a change in venue if additional articles were published that were potentially prejudicial.
Four articles stated that Fernquist was unarmed, a fact which was disputed at trial. Two articles reported that Sheahan had put his hands in and rolled around in his own urine to destroy evidence. The district court excluded the urine evidence at trial as too prejudicial for admission.
After reviewing the totality of the circumstances, we determine that the district court properly exercised its discretion in denying a change of venue. The record supports the district court's determination that a fair and impartial jury would be, and was, impaneled for Sheahan's trial despite the pretrial publicity. The district court, the prosecution, and Sheahan questioned the prospective jurors regarding pretrial publicity. The district court struck three individuals for cause because they formed opinions on the case as a result of the media coverage. Of the twelve jurors and two alternates who were seated, only two jurors, one of whom was an alternate, read any newspaper coverage of the incident. Both jurors affirmed that the media coverage would not affect their ability to judge the case on the facts. The state and Sheahan each exercised their twelve peremptory strikes. Moreover, after the jury was seated, Sheahan did not challenge any of the jurors for cause, a fact which has been held to indicate satisfaction with the jury as finally seated. Winn, 121 Idaho at 856, 828 P.2d at 885.
The record does not show that the circumstances of this case operated to deprive Sheahan of a fundamentally fair trial. Sheahan has not shown that the case was tried in an atmosphere so inflamed by publicity that the indicia of juror impartiality developed during voir dire should be disregarded. See id. Accordingly, we affirm the district court's decision denying Sheahan's motion for a change of venue.
IV. THE ADMISSION OF PRIOR ACT EVIDENCE
Sheahan argues that the district court improperly admitted evidence of an incident between Sheahan and a police officer occurring approximately five weeks before Fernquist's death. Idaho Rule of Evidence 404(b) generally prevents the admission of acts to establish a person's character for the purpose of showing that the person acted in conformity with that character in a given situation. See State v. Wood, 126 Idaho 241, 244-45, 880 P.2d 771, 774-75 (Ct.App. 1994). While evidence of other crimes, wrongs or acts is not admissible to prove a defendant's propensity to commit the crime at issue, it may be admitted if it is relevant for other purposes, such as proof of knowledge, identity, plan, preparation, opportunity, motive, intent and the absence of mistake or accident. I.R.E. 404(b); Wood, 126 Idaho at 245, 880 P.2d at 775.
In determining the admissibility of evidence of prior acts, this Court applies a two-prong analysis. First, the evidence must be relevant to an issue other than the defendant's character or propensity. State v. Whipple, 134 Idaho 498, 504, 5 P.3d 478, 484 (Ct.App. 2000). Whether evidence is relevant is an issue of law. Therefore, when considering admission of evidence of prior conduct, we exercise free review of the trial court's relevancy determination. The second step in the analysis is the determination of whether the probative value of the evidence is substantially outweighed by unfair prejudice. When reviewing this step, we use an abuse of discretion standard. Id.
In determining whether the evidence is relevant, the logical relevance of other act evidence depends upon proof that the charged and the uncharged acts were similar, that the acts involved the same or similar victims, and that the uncharged act involved the same state of mind that constitutes the mens rea element of the uncharged crime. Wood, 126 Idaho at 246, 880 P.2d at 776. In the instant case, we determine that the admitted prior act evidence was not relevant to any issue other than character or propensity and thus, was improperly admitted under Rule 404(b).
The district court admitted the testimony of a police officer regarding an incident which occurred with Sheahan five weeks prior to Fernquist's death. In that incident, an officer in uniform approached Sheahan's residence at night in search of a juvenile out past curfew. The officer noticed that a light was on in the house when he first drove up, but then it was turned off as he approached. He saw the curtain behind the window located in the front door and the doorknob move. The door then opened into a dark room. The officer said hello and pointed his flashlight into the room. He did not identify himself as a police officer. He saw Sheahan in the center of the room, and Sheahan had a gun raised toward the door. Sheahan lowered the gun. When the officer yelled to drop the gun, the door slammed shut. The officer then left the premises. The officer testified that the raised gun looked like the same type of gun that was used to kill Fernquist.
The theory that premeditated or conscious acts in the past make premeditation in a later situation more likely is a tenuous one. See Whipple, 134 Idaho at 504, 5 P.3d at 484. In this case, the prior act does not have enough similarities in victim, act, and/or mens rea to be relevant to the determination of whether Sheahan acted with premeditation in shooting Fernquist. The prior incident involved a uniformed police officer who was looking for a juvenile, not Sheahan. In the incident at issue, Fernquist was not wearing clothing that identified his presence at the residence for the purpose of apprehending Fernquist. Sheahan also knew Fernquist. Moreover, the prior incident does not show that Sheahan had the mens rea to commit any crime. Sheahan raised a gun toward the entrance of his residence and lowered it. In this case, Sheahan shot and killed Fernquist inside his residence. The prior act does not shed light on whether Sheahan had the criminal intent to murder Fernquist, much less whether he planned to murder Fernquist. Accordingly, we determine that there is insufficient similarity between the victims, acts and mens rea to provide any logical relevance on the issue of premeditation for the shooting of Fernquist. See Wood, 126 Idaho at 245, 880 P.2d at 775.
This case is distinguishable from State v. Whipple, 134 Idaho 498, 5 P.3d 478 (Ct.App. 2000). In Whipple, a premeditated murder case, we determined that, while not normally admissible under Rule 404(b), the state's prior act evidence was admissible in that case to rebut a defense theory. The defense's theory was that the defendant did not have the capacity to premeditate due to his mental illness, and the defense presented expert testimony on this issue. Whipple, 134 Idaho at 504-05, 5 P.3d at 484-85. In the instant case, however, Sheahan did not open the door to otherwise inadmissible prior act evidence. The state introduced the evidence as part of its case-in-chief to prove premeditation. Furthermore, Sheahan did not present any affirmative testimony regarding premeditation or his theory of justifiable homicide.
An error is considered harmless if this Court determines beyond a reasonable doubt that the jury would have reached the same result despite the error. State v. Trejo, 132 Idaho 872, 879, 979 P.2d 1230, 1237 (Ct.App. 1999); State v. Miller, 131 Idaho 288, 293, 955 P.2d 603, 608 (Ct.App. 1997); State v. Hudson, 129 Idaho 478, 480, 927 P.2d 451, 453 (Ct.App. 1996). We conclude that the district court's error in admitting this irrelevant prior act evidence was not harmless. The state had little other evidence of Sheahan's premeditation to kill Fernquist. Thus, without the testimony regarding the prior gun incident, we cannot determine beyond a reasonable doubt that the jury would have found Sheahan guilty of first degree murder with premeditation. Accordingly, the admission of the prior act evidence is reversible error.
V. REASONABLE DOUBT JURY INSTRUCTION
Whether the district court properly instructed the jury is a question of law over which this Court exercises free review. State v. Buckley, 131 Idaho 179, 182, 953 P.2d 619, 622 (Ct.App. 1997), aff'd by 131 Idaho 164, 953 P.2d 604 (1998). On appeal, we view jury instructions as a whole, not individually, to determine whether the jury was properly and adequately instructed on the applicable law. State v. Row, 131 Idaho 303, 310, 955 P.2d 1082, 1089 (1998); State v. Rozajewski, 130 Idaho 644, 646, 945 P.2d 1390, 1392 (Ct.App. 1997). The court is required to provide instructions on all matters of law necessary for the jury's information. I.C. § 19-2132(a); State v. Patterson, 126 Idaho 227, 230, 880 P.2d 257, 260 (Ct.App. 1994). The court, however, should not use an instruction that misleads the jury or misstates the law, as it is reversible error. See State v. Humpherys, 134 Idaho 657, 659, 8 P.3d 652, 654 (2000); State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1997); State v. Hanson, 130 Idaho 842, 844, 949 P.2d 590, 592 (Ct.App. 1997).
Sheahan challenges the district court's reasonable doubt instruction as impermissibly reducing the state's burden of proof, thus violating the Sixth and Fourteenth Amendments to the United States Constitution. The district court gave the following definition of "proof beyond a reasonable doubt" to the jury in Instruction 5:
"Proof beyond a reasonable doubt" is proof that leaves you with an abiding conviction of the truth of the charge against the defendant. An abiding conviction is one that would make an ordinary person willing to act in the most important affairs of his or her own life. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof which overcomes every possible doubt. If, based upon your consideration of the evidence, you have an abiding conviction that the defendant is guilty of the crime charged, you must find the defendant guilty. If on the other hand, you think there is a reasonable doubt as to the defendant's guilt, you must give the defendant the benefit of that doubt and find the defendant not guilty.
This instruction is a patchwork of several recognized, but not necessarily preferred, reasonable doubt instruction phrases. The instruction does not pattern the Idaho Criminal Jury Instruction (ICJI) 103, which has been adopted for use by the Idaho Supreme Court in all criminal cases. State v. Rhoades, 121 Idaho 63, 82-83, 822 P.2d 960, 979-980 (1991); State v. Cotton, 100 Idaho 573, 577, 602 P.2d 71, 75 (1979). ICJI 103 defines reasonable doubt as:
Reasonable doubt is defined as follows: It is not mere possible doubt, because everything relating to human affairs, and depending upon moral evidence, is open to some possible or imaginary doubt. It is the state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction to a moral certainty, of the truth of the charge.
It is inappropriate for a district court to fail to give ICJI 103 to the jury. See Rhoades, 121 Idaho at 82-83, 822 P.2d at 979-980. Further, any embellishment or addition to ICJI 103 risks reversal. See State v. Merwin, 131 Idaho 642, 647, 962 P.2d 1026, 1031 (1998); Rhoades, 121 Idaho at 83, 822 P.2d at 980. We note, however, that this Court and the Idaho Supreme Court have upheld reasonable doubt instructions which do not mirror ICJI 103, as long as the instruction accurately states the law and is not so confusing or argumentative as to mislead the jury. See Merwin, 131 Idaho at 647, 962 P.2d at 1031 (instruction based on Federal Judicial Center, Pattern Criminal Jury Instruction 21); State v. Sivak, 127 Idaho 387, 390, 901 P.2d 494, 497 (1995) (instruction added language to ICJI 103); State v. Pratt, 125 Idaho 546, 558-59, 873 P.2d 800, 812-13 (1993) (instruction was "substantially the same" as ICJI 103); State v. Hoffman, 123 Idaho 638, 643, 851 P.2d 934, 939 (1993) (instruction was "substantially the same" as ICJI 103); Rhoades, 121 Idaho at 82-83, 822 P.2d at 979-980 (instruction added language to ICJI 103); State v. Harris, 136 Idaho 484, 485, 36 P.3d 836, 837 (Ct.App. 2001) (instruction used alternate definition in ICJI 103A); State v. Stricklin, 136 Idaho 264, 267, 32 P.3d 158, 161 (Ct.App. 2001) (instruction eliminated "moral evidence" and "moral certainty" language).
Sheahan argues that the instruction's use of "possible doubt" without modifying it with "imaginary," as it is used in ICJI 103, lessens the state's burden of proof. We agree. Idaho cases have described "reasonable doubt" as not being an imaginary or fanciful doubt. See State v. Taylor, 76 Idaho 358, 361-62, 283 P.2d 582, 585-86 (1955) ("reasonable doubt" is not a doubt based on mere fanciful reason); State v. Levy, 9 Idaho 483, 496, 75 P. 227, 231 (1904) ("reasonable doubt" is not a mere imaginary, captious or possible doubt). Moreover, in Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 1248-49 (1994), the United States Supreme Court evaluated a challenge to a jury instruction that described "reasonable doubt" as "not a mere possible doubt." The Court determined that the use of "possible doubt" as modified by the term "imaginary" in another sentence of the instruction made it clear to the jury the that "possible doubt" was meant in the sense of a fanciful or imaginary doubt. Thus, a juror may have a possible doubt and still find an accused guilty in the sense that the possible doubt is a fanciful doubt.
The instruction given by the district court advises the jury that the state's proof is not required to overcome every "possible doubt." "Possible" means "feasible, not contrary to nature of things" or "improbable, without excluding the idea of feasibility." BLACK'S LAW DICTIONARY 1166 (6th ed. 1990). Thus, a "possible doubt" may be a "feasible doubt" or an "improbable doubt." Accordingly, an instruction defining "proof beyond a reasonable doubt" as a proof that does not eliminate "possible doubt" permits the jury to find an accused guilty, even if a feasible doubt or an improbable doubt remains.
In contrast, "imaginary" is often used in conjunction with the terms "fanciful" or "fictitious." See Victor, 114 S.Ct. at 1248-49; Levy, 9 Idaho at 496, 75 P. at 231. Thus, an instruction defining "proof beyond a reasonable doubt" as proof that does not eliminate a "possible or imaginary doubt" permits the jury to convict an accused only if a fanciful or fictitious doubt remains. This type of doubt restricts the jury more than a "feasible" or "improbable" doubt. Accordingly, we determine that an instruction defining "proof beyond a reasonable doubt" that allows a juror to have a "possible doubt" rather than a "possible or imaginary" doubt misstates the law by lessening the state's burden of proof, i.e., it permits jurors to have a feasible or improbable doubt to find a defendant guilty, rather than a fanciful doubt.
We note that the phrase in the instruction which uses "possible doubt" is based on the Federal Judiciary Center, Pattern Criminal Jury Instruction (PCJI) 21. In Merwin, the Idaho Supreme Court upheld the use of PCJI 21. Merwin, 131 Idaho at 648, 962 P.2d at 1032. The instant case, however, is distinguishable from Merwin. In this case, rather than using all of PCJI 21, the instruction given to the jury used only an isolated sentence from the instruction. Moreover, the issue in Merwin was whether the term "every possible doubt" was deficient, rather than whether the term "possible" must be used with the term "imaginary."
PCJI Instruction 21 states, in relevant part:
Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant's guilt. There are very few things in this world that we know with absolute certainty, and in criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty. If on the other hand, you think there is a real possibility that he is not guilty, you must give him the benefit of the doubt and find him not guilty.
We note that in State v. Hoffman, 123 Idaho 638, 643, 851 P.2d 934, 939 (1993), the Idaho Supreme Court upheld a jury instruction that described "possible doubt" without modifying it with "imaginary" or some other equivalent term. Hoffman, however, was decided prior to the "possible doubt" analysis in Victor v. Nebraska. See Victor, 114 S.Ct. at 1248-49.
We determine that the reasonable doubt instruction, taken as a whole, misstated the law by lessening the state's burden of proof in violation of the Sixth and Fourteenth Amendments to the United States Constitution. As a constitutionally deficient burden of proof instruction vitiates all the jury's findings, we conclude that this error cannot be harmless and is, thus, reversible error. See Sullivan v. Louisiana, 113 S.Ct. 2078, 2081-82 (1993).
We express no opinion regarding Sheahan's other challenged phrases in Instruction 5. We reiterate, however, that a district court disregards or varies the language of ICJI 103 at "considerable risk" that any verdict rendered will be overturned on appeal. See Merwin, 131 Idaho 642 at 647, 962 P.2d at 1031.
VI. ADMISSION OF "HABIT" EVIDENCE
Having concluded that reversible error exists, it is not necessary to rule on the other issues raised on appeal. However, where an appellate court reverses or vacates a judgment upon an issue properly raised and remands the case for further proceedings, it may give guidance regarding other issues on remand. See State v. Crowe, 135 Idaho 43, 47, 13 P.3d 1256, 1260 (Ct.App. 2000); State v. Konechny, 134 Idaho 410, 420, 3 P.3d 535, 545 (Ct.App. 2000). We therefore set forth the following for guidance on Sheahan's argument that the district court erred in admitting "habit" testimony from Fernquist's business partner that Fernquist had never used weapons or guns in taking anyone into custody. The decision whether to admit evidence at trial is generally within the province of the trial court. A trial court's determination that evidence is supported by a proper foundation is reviewed for an abuse of discretion. State v. Gilpin, 132 Idaho 643, 646, 977 P.2d 905, 908 (Ct.App. 1999). Therefore, a trial court's determination as to the admission of evidence at trial will be reversed only where there has been an abuse of that discretion. State v. Zimmerman, 121 Idaho 971, 973-74, 829 P.2d 861, 863-64 (1992). As discussed previously, when we review a trial court's discretionary decision on appeal, we conduct a multi-tiered inquiry. Grube, 126 Idaho at 381, 883 P.2d at 1073; Hedger, 115 Idaho at 600, 768 P.2d at 1333.
Sheahan argues that the testimony was improperly admitted habit evidence. A habit is a person's regular practice of responding to a particular situation with a specific kind of conduct. State v. Rodriguez, 118 Idaho 948, 951, 801 P.2d 1299, 1302 (Ct.App. 1990). The key distinction between habit evidence and character evidence is the element of frequency. Id. In the instant case, Fernquist's business partner testified that Fernquist had never taken a bail jumper into custody. The witness, thus, could not testify to any specific instances of how Fernquist had acted in a situation similar to the circumstances present in attempting to apprehend Sheahan. Accordingly, we conclude that the witness' testimony was essentially offered to show Fernquist's peaceful character, rather than his habit.
The introduction of character evidence of a victim is governed by Idaho Rule of Evidence 404(a)(2). Rule 404(a)(2) permits "evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor." Sheahan's theory of the case was that the shooting was justifiable and that Fernquist had broken into Sheahan's residence with a pipe. The state was essentially offering Fernquist's business partner's testimony to show that it was not in Fernquist's nature to use weapons and that he was peaceful during a specific act, i.e., Fernquist had never taken a weapon to apprehend a bail jumper, and would not do so in this case. Rule 404(a)(2) does not permit the admission of specific acts to show a victim's nature. See State v. Dallas, 109 Idaho 670, 678-79, 710 P.2d 580, 588-89 (1985) (district court erroneously admitted evidence of specific conduct of victim to show a character trait for hostility or violence); State v. Arrasmith, 132 Idaho 33, 41, 966 P.2d 33, 41 (Ct.App. 1998) (district court properly excluded specific act evidence offered to show that the victim had a reputation for violence). Accordingly, evidence of Fernquist's specific acts was not admissible to show he acted in conformity with a peaceful character.
VII. CONCLUSION
We affirm the district court's denial of Sheahan's motion for change in venue. We vacate Sheahan's judgment of conviction for first degree murder however, based on the admission of irrelevant prior act evidence and the erroneous "proof beyond a reasonable doubt" jury instruction. Additionally, for guidance, we note that evidence of a specific act to prove character is not admissible.
Chief Judge PERRY and Judge Pro Tem BURDICK CONCUR.